CEDH · CASELAW;REPORTS;ENG — 30 juin 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 15153/89                         Vereinigung Demokratischer                        Soldaten Österreichs and                              Berthold Gubi                                   against                                   Austria                          REPORT OF THE COMMISSION                          (adopted on 30 June 1993)                              TABLE OF CONTENTS                                                                    Page   I.INTRODUCTION       (paras. 1 - 16) . . . . . . . . . . . . . . . . . . . . . . . 1   A.     The application       (paras. 2 - 6). . . . . . . . . . . . . . . . . . . . . . . . 1   B.     The proceedings       (paras. 7 - 11) . . . . . . . . . . . . . . . . . . . . . . . 1   C.     The present Report       (paras. 12 - 16). . . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 17 - 39). . . . . . . . . . . . . . . . . . . . . . . 3   A.     The particular circumstances of the case       (paras. 17 - 32). . . . . . . . . . . . . . . . . . . . . . . 3   B.     The relevant domestic law       (paras. 33 - 39). . . . . . . . . . . . . . . . . . . . . . . 6   III.   OPINION OF THE COMMISSION       (paras. 40 - 130) . . . . . . . . . . . . . . . . . . . . . . 8   A.     Complaints declared admissible       (para. 40). . . . . . . . . . . . . . . . . . . . . . . . . . 8   B.     Points at issue       (para. 41). . . . . . . . . . . . . . . . . . . . . . . . . . 8   C.     The alleged violation of the       first applicant's Convention rights       (paras. 42 - 98). . . . . . . . . . . . . . . . . . . . . . . 9         I.    Article 10 of the Convention            (paras. 42 - 86) . . . . . . . . . . . . . . . . . . . . 9              a.     Interference                  (paras. 43 - 51) . . . . . . . . . . . . . . . . . 9              b.     Justification                  (paras. 52 - 85) . . . . . . . . . . . . . . . . .10                    aa. Was the interference "prescribed                      by law"? (paras. 52 - 67). . . . . . . . . . .10                    bb. Did the interference have a                      legitimate aim or aims?                      (paras. 68 - 70) . . . . . . . . . . . . . . .13                    cc. Could the interference be regarded                      as "necessary in a democratic society"?                      (paras. 71 - 85) . . . . . . . . . . . . . . .13              CONCLUSION            (para. 86) . . . . . . . . . . . . . . . . . . . . . . .15         II.   Article 13, in conjunction with Article 10,            of the Convention            (paras. 87 - 93) . . . . . . . . . . . . . . . . . . . .15              CONCLUSION            (para. 94) . . . . . . . . . . . . . . . . . . . . . . .16         III. Article 14, in conjunction with Article 10,            of the Convention            (paras. 95 - 97) . . . . . . . . . . . . . . . . . . . .16              CONCLUSION            (para. 98) . . . . . . . . . . . . . . . . . . . . . . .17   D.     The alleged violation of the       second applicant's Convention rights       (paras. 99 - 124) . . . . . . . . . . . . . . . . . . . . . .17         I.    Article 10 of the Convention            (paras. 99 - 113). . . . . . . . . . . . . . . . . . . .17              a.     Interference                  (para. 99) . . . . . . . . . . . . . . . . . . . .17              b.     Justification                  (paras. 100 - 112) . . . . . . . . . . . . . . . .17                    aa. Was the interference "prescribed                      by law"?                      (paras. 100 - 103) . . . . . . . . . . . . . .17                    bb. Did the interference have a legitimate                      aim or aims?                      (para. 104). . . . . . . . . . . . . . . . . .17                    cc. Could the interference be regarded as                      "necessary in a democratic society"?                      (paras. 105 - 112) . . . . . . . . . . . . . .18              CONCLUSION            (para. 113). . . . . . . . . . . . . . . . . . . . . . .19         II.   Article 13, in conjunction            with Article 10, of the Convention            (paras. 114 - 122) . . . . . . . . . . . . . . . . . . .19              CONCLUSION            (para. 122). . . . . . . . . . . . . . . . . . . . . . .20         III. Article 14, in conjunction            with Article 10, of the Convention            (paras. 123 - 124) . . . . . . . . . . . . . . . . . . .20              CONCLUSION            (para. 124). . . . . . . . . . . . . . . . . . . . . . .20   E.     Recapitulation       (paras. 125 - 130). . . . . . . . . . . . . . . . . . . . . .20   DISSENTING OPINION OF SIR BASIL HALL JOINED BY MM. G. JÖRUNDSSON, A.S. GÖZÜBÜYÜK AND B. MARXER . . . . . . . . . .21   DISSENTING OPINION OF MR. MARTINEZ JOINED BY MR. REFFI. . . . . . .22   DISSENTING OPINION OF MM. J.-C. SOYER AND H.G. SCHERMERS. . . . . .23   APPENDIX I:       HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .22   APPENDIX II:      DECISION ON THE ADMISSIBILITY OF THE APPLICATION .23   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The first applicant is a private association of soldiers under Austrian law and has its seat in Vienna.   The first applicant edits the military journal "Igel", which publishes information for soldiers and critical reports about problems concerning soldiers in general, concerning particular situations or events in military barracks as well as comments on other political matters.   3.     The second applicant, born in 1958, is an Austrian national and resident in Vienna.   At the relevant time he was a soldier and member of the first applicant.   4.     Both applicants are represented by Mr. G. Lansky, a lawyer practising in Vienna.   5.     The application is directed against Austria.   The Government were represented by their Agent, Ambassador H. Türk, then Head of the International Law Department at the Federal Ministry of Foreign Affairs.   6.     The application concerns the applicants' complaints under Article 10 of the Convention about the prohibition on the distribution of the military journal "Igel" in the area of Austrian military barracks, and their related complaints under Articles 13 and 14 of the Convention.   B.     The proceedings   7.     The application was introduced on 12 June 1989 and registered on 21 June 1989.   8.     On 27 May 1991 the Commission decided to communicate the application and to invite the respondent Government to submit written observations on its admissibility and merits.   9.     After an extension of the time-limit, the Government's observations were submitted on 22 October 1991.   The applicants submitted their observations in reply on 27 January 1992, also after an extension of the time-limit.   10.    On 6 July 1992 the Commission declared the application admissible.   11.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Active consultations with the parties took place between 10 July 1992 and 6 January 1993.   The Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   12.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO   13.    The text of this Report was adopted on 30 June 1993 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.    The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)     to establish the facts, and   ii)    to state an opinion as to whether the facts found disclose a       breach by the State concerned of its obligations under the       Convention.   15.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   16.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   17.    On 27 July 1987 the first applicant applied to the Federal Ministry of Defence (Bundesministerium für Landesverteidigung) for permission to distribute its military journal "Igel" in the area of Austrian military barracks.   18.    As far as the military journal "Igel" is concerned, the Commission received copies of the issues Nos. 1, 2, 3 and 4 published in 1987, Nos. 1, 2 and 3/4 published in 1988 and No. 4 published in 1988/89.   The journal had as a sub-title "The NEW journal for soldiers" ("Die NEUE Soldaten-zeitung"), its symbol was a hedgehog with a spiky helmet, showing its teeth.   The journal addressed soldiers as a circle of readers and its contents accordingly touched particularly on questions relating to the armed forces, the military service and the military life.   19.    Some of the matters discussed in the said issues were the demands for abolition of the curfew, the limitation of working time of the armed forces to forty hours per week, the limitations on rules regarding the hair-cut of conscripts, the recruitment of women for military service, the influence of good connections on transfers.   It contained information for new conscripts relating to their rights in the armed forces, and references to proceedings before the Austrian Constitutional Court (Verfassungsgerichtshof) which led to the abolition of the military arrest and detention.   Repeatedly, the first applicant published critical reports and complaints about alleged shortcomings in different military barracks, or criticism concerning public statements of military superiors.   There were also reports on meetings of the European Movement of Soldiers and extracts quoted from other publications.   The journal further served to inform about the aims and the work of the first applicant.   The various publications were frequently accompanied by satirical photographs or drawings.   20.    The Austrian military services issued internal rules on the distribution of non-official publications in the area of military barracks.   A circular of the Federal Ministry of Defence, Vienna Army Headquarters (Armeekommando), of 14 March 1975 instructs commanders to take preventive measures as regards publications with negative ideas concerning the military service ("negatives wehrpolitisches Gedanken- gut") or unjustified attacks on the Austrian armed forces, and, inter alia, to prohibit the distribution and posting of such publications. A circular of the Army Corps II Headquarters (Korpskommando II) of 17 December 1987 instructed commanders to amend the existing barracks regulations (Kasernordnung) to the effect that it was prohibited to distribute or post any non-official publications in the area of military barracks without permission by the commander of the barracks concerned.   General permissions for the distribution of military journals may be granted by the Federal Ministry of Defence.   21.    The first applicant's request of July 1987 was not formally decided upon.   22.    According to replies of the Federal Minister of Defence of 14 June 1988 to questions raised in this context by members of Parliament, the military journals "Miliz-Impuls" and "Visier", edited by private associations, were alternately joined with the official information bulletin of the Federal Ministry of Defence "Miliz-Infor- mation" and distributed to all militia soldiers.   For this purpose, the necessary number of copies of the two military journals were bought by the Federal Ministry of Defence.   The Minister also stated that the Ministry of Defence was examining to what extent other publications with a positive attitude to military defence could be supported. However, activities directed against the interests of military defence would not be supported.   23.    According to a further reply of 10 May 1989 to questions of members of Parliament, the Federal Ministry of Defence was not prepared to permit the distribution of the military journal "Igel" to the armed forces.   Under S. 46 para. 3 of the Military Act (Wehrgesetz) of 1978, the Minister stated, members of the armed forces had the right to receive information about political matters from general sources.   They could buy, or have delivered by post, any publication.   Within military barracks, however, only such publications could be distributed which showed a minimum of identification with the constitutional duties of the Army, were free from party-political contents and were favourable, or at least not unfavourable, to the reputation of the Army.   Critical publications, for example the journal "hallo" edited by the youth organisation of the trade union, would not be excluded from distribution, if they satisfied the above criteria.   Having regard to these criteria, the request of the first applicant could, for the time being, not be granted.   The Minister referred to S. 79 of the Constitution (Bundesverfassungs-gesetz), S. 44 para. 1 and S. 46 of the Military Act, S. 116 of the Penal Code (Strafgesetzbuch) and S. 3 para. 1 of the Service Regulations (Allgemeine Dienstvorschriften) as the legal basis for a decision on the distribution of journals.   24.    On 29 December 1987 the second applicant distributed copies of the military journal "Igel", issue No. 3/87, in the area of the Schwarzenberg barracks in Vienna.   His superior R. ordered him to stop this distribution.   25.    The issue 3/87 contained in its article on the cover page a discussion on military drill.   The editorial set out the aim of the journal to further the interests of conscripts in co-operation with the cadre, on the basis of common interests and mutual respect.   A report about military complaint proceedings brought by the second applicant followed.   A leading article discussed militia system principles in the Austrian Army.   There was one page of quotations from articles published in other newspapers, and a report on the 20th congress of young members of the Austrian Trade Union (Österreichischer Gewerkschaftsbund).   On one further page, the first applicant informed about its aims and demands in the interests of conscripts.   The last report related to a radio feature of the Austrian broadcast which had taken up complaints lodged by one conscript about a reduction of his daily allowance in compensation for allegedly lost material.   26.    On 12 January 1988 the second applicant was instructed by another superior about the general regulations of 1975 and 1987 as well as the barracks regulations of the Schwarzenberg barracks of 4 January 1988 which prohibited the distribution and posting of publications in the area of military barracks without permission of the commander.   27.    On 22 January 1988 the second applicant filed a complaint (Beschwerde) with the Military Complaints Board (Beschwerdekommission in militärischen Angelegenheiten) at the Federal Ministry of Defence about the order of his superior R. and the above regulations.   28.    On 7 April 1988 the Complaints Division (Beschwerdeabteilung) of the Federal Ministry of Defence, in accordance with the recommendation of the Military Complaints Board of 22 March 1988, dismissed the applicant's complaint of 22 January 1988.   29.    The Complaints Division found in particular that the order of the applicant's superior was based on the instructions of the Army Corps II Headquarters.   Article 5 of the Basic Constitutional Act (Staatsgrund- gesetz) guaranteed the property and also applied to legal persons of public law, and thus to the Austrian Federation as the owner of the real estate on which the Schwarzenberg barracks were situated.   The instructions of the Army Corps II Headquarters were based on Article 5 of the Basic Constitutional Act, S. 19 of the Service Regulations and S. 13 of the Military Act.   The contents and limits of the right to freedom of expression under Article 13 of the Basic Constitutional Act were prescribed by, inter alia, the Military Act as regards the duty of secrecy (S. 17 of the Military Act) and the duty of obedience (S. 44 of the Military Act).   Such restrictions followed from the particular relationship in the armed forces in which the superiors exercise authority (besonderes Gewaltverhältnis).   Compliance with the order not to distribute or post publications without permission by the commander therefore constituted one of the applicant's duties as a soldier.   30.    On 26 September 1988 the Constitutional Court refused to admit the second applicant's complaint about the order of 29 December 1987 and the ensuing proceedings.   The Constitutional Court found that the complaint did not raise any particular issues under constitutional law and that the matter was not excluded from the competence of the Administrative Court.   The decision was served on 12 December 1988.   31.    As regards the question of competence in these matters, the applicants' representative submitted a decision of the Administrative Court of 19 January 1988 declaring, in another case, a complaint about a decision of the Complaints Division at the Federal Ministry of Defence inadmissible.   The Administrative Court, in its reasoning, noted that the above complaint had been transferred by the Constitutional Court and that there was a divergence in the case-law of these two Courts on the question whether the decision of the Complaints Division was a formal decision subject to appeal.   32.    Furthermore, on 26 September 1988 the Constitutional Court quashed a disciplinary punishment imposed upon the applicant on 5 February 1988 regarding the distribution of journals on 29 December 1987.   The Constitutional Court considered that the regulations of the Vienna Army Headquarters of 1975 and of the Army Corps II Headquarters of 1987 had been addressed to superior military institutions.   They had not been binding upon the second applicant. The Schwarzenberg barracks regulations had only been amended in January 1988, i.e. after the incident on 29 December 1987.   B.     The relevant domestic law   33.    S. 79 of the Federal Constitution (Bundesverfassungsgesetz) lays down the general duties of the Austrian armed forces.   34.    SS. 44 to 46 of the Military Act (Wehrgesetz), in the version in force at the relevant time, govern the duties and rights of the soldiers.   35.    S. 44 para. 1 of the Military Act prescribes that the duty to serve in the Army obliges the soldiers to support the Army in its tasks, and to refrain from any act which might harm the reputation of the Army.   S. 44 para. 4 entitles every soldier to put forward requests, raise objections and complain about unlawful acts; such complaints are decided upon by the Complaints Division at the Federal Ministry of Defence upon recommendation by the Military Complaints Board (S. 6 para. 4).   According to S. 46 the Army must be kept free from any party-political activities; soldiers have the same political rights as other citizens; party-political activities during the service and in the military area are prohibited, except personal information about political matters from generally accessible sources.   36.    The Service Regulations of the Federal Army (Allgemeine Dienstvorschriften für das Bundesheer - Bundesgesetzblatt 43/1979) regulate in detail the military service in the Austrian armed forces. They are enacted by the Austrian Ministry of Defence under S. 13 of the Military Act.   As regards the general duties of soldiers, S. 3 states in particular that the soldier must always be prepared to do his service, and has to refrain from any act which might harm the reputation of, or the trust of the public in, the Austrian Army. Having regard to his task of defending his country, the soldier has a particular relationship of loyalty to the Republic of Austria, which requires discipline, comradeship, obedience, vigilance, bravery and secrecy.   S. 17 provides for the duties of persons liable to military service, including a particular duty of secrecy.   Under S. 19 para. 2 the commanders of military barracks have to take the necessary measures to ensure the military order and security.   According to S. 19 para. 3 the commanders issue, within their competence under S. 19 para. 2, barracks regulations (Kasernordnung), which relate inter alia to the access to the area of military barracks.   These regulations are available at the barracks secretariats.   37.    As stated above (at para. 20), a circular of the Federal Ministry of Defence, Vienna Army Headquarters (Armeekommando), of 14 March 1975 instructed commanders to take preventive measures as regards publications with negative ideas concerning the military service ("negatives wehrpolitisches Gedankengut") or unjustified attacks on the Austrian armed forces, and, inter alia, to prohibit the distribution and posting of such publications. A circular of the Army Corps II Headquarters (Korpskommando II) of 17 December 1987 instructed commanders to amend the existing barracks regulations (Kasernordnung) to the effect that it was prohibited to distribute or post any non-official publications in the area of military barracks without permission by the commander of the barracks concerned.   On 4 January 1988 the Schwarzenberg barracks regulations were amended to the effect that, without permission by the commander, the sale or distribution free of charge or posting of any non-official publications in the area of the military barracks was prohibited.   38.    Under S. 116 of the Penal Code (Strafgesetzbuch) defamation or insult of, inter alia, the Austrian armed forces is punishable.   39.    The competence of the Constitutional Court (Verfassungsgerichts- hof) to receive complaints about the violation of constitutionally guaranteed rights is laid down in S. 144 para. 1 of the Federal Constitution, and relates to complaints against formal decisions of administrative authorities or complaints concerning the exercise of direct administrative authority and coercion against a particular individual (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und Zwangsgewalt gegen eine bestimmte Person).   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   40.    The following complaints were declared admissible:   -      the first applicant's complaint that the prohibition on the       distribution of its military journal "Igel" in the area of       Austrian military barracks, in particular the failure of the       Federal Ministry of Justice to grant its request for permission       to distribute its military journal in this area, violated its       freedom of expression;   -      the first applicant's complaint that it did not have an effective       remedy under Austrian law to complain about the failure of the       Federal Ministry of Defence to decide upon the above request;   -      the first applicant's complaint that the practice of the Federal       Ministry of Defence as regards the grant of permission for       distribution and the financial support of some military journals       discriminated against the first applicant for political reasons;   -      the second applicant's complaint that the order of       29 December 1987 to stop the distribution of the journal "Igel"       in the area of the Schwarzenberg Barracks and the subsequent       warning, referring to the prohibition on unauthorised       distribution of publications under the Barracks Regulations,       violated his right to freedom of expression;   -      the second applicant's complaint that he did not have an       effective remedy under Austrian law to complain about the above       order and instruction;   -      the second applicant's complaint about discrimination for       political reasons.   B.     Points at issue   41.    Accordingly, the issues to be determined are:   -      whether, with regard to the first applicant, there has been a       violation of Article 10 (Art. 10) of the Convention;   -      whether, with regard to the first applicant, there has been a       violation of Article 13, in conjunction with Article 10,       (Art. 13+10) of the Convention;   -      whether, with regard to the first applicant, there has been a       violation of Article 14, in conjunction with Article 10,       (Art. 14+10) of the Convention;   -      whether, with regard to the second applicant, there has been a       violation of Article 10 (Art. 10) of the Convention;   -      whether, with regard to the second applicant, there has been a       violation of Article 13, in conjunction with Article 10,       (Art. 13+10) of the Convention;   -      whether, with regard to the second applicant, there has been a       violation of Article 14, in conjunction with Article 10,       (Art. 14+10) of the Convention.   C.     The alleged violation of the first applicant's Convention rights   I.     Article 10 (Art. 10) of the Convention   42.    Article 10 (Art. 10) of the Convention provides, so far as relevant:         "1. Everyone has the right to freedom of expression.   This right       shall include freedom to hold opinions and to receive and impart       information and ideas without interference by public authority       and regardless of frontiers. ...         2. The exercise of these freedoms, since it carries with it       duties and responsibilities, may be subject to such formalities,       conditions, restrictions or penalties as are prescribed by law       and are necessary in a democratic society, for the prevention of       disorder and crime, ... for the protection of the reputation or       rights of others, ..."   a.     Interference   43.    The respondent Government maintain that the prohibition on the distribution of the journal "Igel" in the area of Austrian military barracks does not interfere with the first applicant's right to freedom of expression under Article 10 (Art. 10).   They consider that the State, in this respect, exercises private property rights as the owner of the estates where the barracks are situated.   44.    The Commission recalls that, according to Article 1 (Art. 1) of the Convention, the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in the Convention.   This undertaking extends to all persons under their actual authority and responsibility (cf. No. 6780/74 & No. 6950/75, Dec. 26.5.76, D.R. 2 p. 125; Stocké v. Germany, Comm. Report 12.10.89, Series A no. 199, p. 24, para. 166).   45.    The Convention thus applies in principle also to the armed forces, even though the particular characteristics of military life and its effects on the situation of individual members have to be taken into account (cf., Eur. Court H.R., Engel and Others judgment of 8 June 1976, Series A no. 22, p. 23, para. 54).   46.    Furthermore, the Convention does not operate any distinction between the functions of a Contracting State as holder of public power and its responsibilities in private law relations with individuals. The Court thus found Article 11 binding upon the "State as employer", whether the latter's relations with its employees were governed by public or private law (Eur. Court H.R., Swedish Engine Drivers' Union judgment of 6 February 1976, Series A no. 20, p. 14, paras. 36-37; Schmidt and Dahlström judgment of 6 February 1976, Series A no. 21, p. 15, paras. 32-33).   47.    The Commission considers that a Contracting State, in the area of its real estate, remains bound by its undertaking to secure the rights and freedoms guaranteed in the Convention (cf. No. 8010/77, Dec. 1.3.79, D.R. 16 p. 101, as regards school premises), in particular where such property is used for public purposes, as in the present case.   48.    Article 10 (Art. 10) guarantees the right to freedom of expression including, inter alia, the freedom to impart information and ideas without interference by public authority.   Any interferences - formalities, conditions, restrictions or penalties - contravene Article 10 (Art. 10) of the Convention, if they are not justified under Article 10 para. 2 (Art. 10-2), as being prescribed by law, pursuing a legitimate aim and being necessary in a democratic society for the said aim.   49.    In the present case, the Austrian rules on the distribution of non-official publications in the area of military barracks, the corresponding army circulars and barracks regulations prohibited the first applicant from distributing its military journal "Igel" in the area of Austrian military barracks.   The Federal Ministry of Defence did not grant the first applicant's request of 27 July 1987 for a special permission in this respect.   50.    The Commission notes that no restrictions were placed upon the distribution of the military journal "Igel" outside the area of Austrian military barracks where members of the armed forces could buy it, and have it delivered by mail.   However, the first applicant edited a periodical with a special range of subjects addressing the members of the Austrian armed forces.   The above prohibition restricted the first applicant's sphere of action and impeded its access to the target group of the information and opinions published in its journal.   51.    In these circumstances, the Commission finds that the above prohibition constitutes an interference with the first applicant's right, as guaranteed under Article 10 para. 1 (Art. 10-1).   The Commission must, therefore, examine whether this interference is justified under Article 10 para. 2 (Art. 10-2).   b.     Justification   aa.    Was the interference "prescribed by law"?   52.    The first applicant maintains that the prohibition on the distribution of its journal was not prescribed by law.   According to the first applicant, the Military Act did not cover the prohibition on the distribution of the journal "Igel" which did not pursue party- political aims.   The barracks regulations were not published in the official Gazette and could not be regarded as law.   53.    The Government submit that the prohibition on distribution of periodicals, including the journal edited by the first applicant, in the area of Austrian military barracks was based on the Schwarzenberg barracks regulations, which were issued in accordance with S. 19 para. 2 of the Service Regulations.   They also refer to S. 44 para. 1 and S. 46 of the Military Act (in the version in force at the time in question).   Furthermore they state that S. 116 of the Penal Code extends to defamation or insult regarding the armed forces.   54.    The Government further contend that, according to the practice of the Ministry of Defence, applying these rules, no distribution of such periodicals could be permitted, if their contents partly or as a whole were directed against the aims of military defence, or hindered the armed forces in the execution of their tasks, or contained attacks against the armed forces or publicly insulted them.   They consider that the contents of the military journal edited by the first applicant were such as to lower the armed forces in public esteem and to undermine military discipline.   55.    The Commission recalls that the interference with the right protected by Article 10 para. 1 (Art. 10-1) must have some basis in domestic law, which itself must be accessible to the person concerned and be formulated with sufficient precision to enable the individual to foresee its consequences for him (Eur. Court H.R., Sunday Times judgment of 26 April 1979, Series A no. 30, p. 30, para. 47 and p. 31, para. 49; Barthold judgment of 25 March 1985, Series A no. 90, p. 21, para. 45; Müller and Others judgment of 24 May 1988, Series A no. 133, p. 20, para. 29; mutatis mutandis, Kruslin judgment of 24 April 1990, Series A no. 176-A, p. 20, para. 27; Huvig judgment of 24 April 1990, Series A no. 176-B, p. 52, para. 26).   56.    The Commission notes that the barracks regulations of the Schwarzenberg military barracks, as amended in January 1988, prohibited the distribution and posting of publications in the area of military barracks without permission of the commander.   57.    However, the Commission is not called upon to determine whether barracks regulations constitute "law" within the meaning of Article 10 para. 2 (Art. 10-2) as the amendment at issue was passed only six months after the first applicant's request to the Federal Ministry of Defence in July 1988.   58.    In this period, the prohibition on the distribution of periodicals in the area of military barracks and the practice of the Federal Ministry of Defence governing the granting of a permission for the distribution of particular periodicals could only be based on S. 44 para. 1 and S. 46 of the Military Act.   59.    The Commission considers that these provisions contain general rules on the duties of soldiers and in particular the prohibition of party-political activities during the service and in the military area, which do not directly regulate the distribution of periodicals in the area of military barracks.   Nevertheless, taken together with the powers conferred upon the commanders of military barracks under S. 19 para. 2 of the Service Regulations, namely to take the necessary measures to ensure military order and security, they could be regarded as a legal basis for the prohibition and the corresponding practice of the Federal Ministry of Defence, as superior authority, to grant permissions in particular cases only (cf., mutatis mutandis, Kruslin judgment, loc. cit., pp. 21-22, para. 29; Huvig judgment, loc. cit., pp. 53-54, para. 28).   60.    As regards the second requirement, the accessibility of the relevant provisions, the Commission notes that the Military Act and the Service Regulations were published in the Austrian National Gazette. The first applicant, an association of soldiers, could, in these circumstances, adequately acquaint itself with the rules applicable in this field.   61.    The Commission, turning to the third requirement, the law's foreseeability, recalls that frequently laws, particularly in fields in which the situation changes according to the prevailing views of society, are framed in a manner that is not absolutely precise.   Their interpretation and application are questions of practice (Eur. Court H.R., Barthold judgment, loc. cit.; Müller judgment, loc. cit.; Markt Intern Verlag GmbH and Klaus Beermann judgment of 20 November 1989, Series A no. 165, pp. 18-19, para. 30).   Military rules may be considered as falling within this category.   62.    However, compatibility with the rule of law implies that there must be a measure of legal protection in domestic law against arbitrariness.   If a law confers discretion on a public authority, it must indicate the scope of that discretion, although the degree of precision required will depend upon the particular subject matter (cf. Eur. Court H.R., Herczegfalvy judgment of 24 September 1992, Series A no. 244, p. 27, para. 89).   63.    The Commission finds that neither of the provisions of the Military Act and the Service Regulations contain clear principles on the practice of the Federal Ministry of Defence relating to permissions to distribute particular periodicals within the area of military barracks.    The army circulars of 1975 and 1987, which refer to publications with negative ideas about the military service or unjustified attacks on the Austrian armed forces, though they do not themselves have the force of law, could, in principle, be taken into account (Eur. Court H.R., Silver judgment of 25 March 1983, Series A no. 61, pp. 33-34, para. 88).   However, the terms used in these circulars are in themselves vague.   64.    The respondent Government have not drawn the Commission's attention to any established Austrian case-law on the principles concerning exceptions to the general prohibition on the distribution of periodicals in the area of Austrian military barracks.   65.    Furthermore, it does not appear that the Federal Ministry of Defence has adopted a procedure in such cases, which could effectively limit this discretion, and provide for safeguards against arbitrariness.   66.    In these circumstances it remains doubtful whether the legal provisions referred to by the Government are sufficiently clear and precise to be accepted as "law".   67.    However, the Commission does not find it necessary to decide this question, since even assuming compliance with this condition, the interference with the first applicant's right was not justified under Article 10 para. 2 (Art. 10-2) for the reasons set out hereafter.   bb.    Did the interference have a legitimate aim or aims?   68.    The Government submit that the interference complained of served the purpose of the prevention of disorder.   The first applicant does not agree.   69.    The Commission recalls that the concept of "order" as envisaged by Article 10 para. 2 (Art. 10-2) refers not only to public order or "ordre public" within the meaning of Article 6 para. 1 (Art. 6-1) and Article 9 para. 2 (Art. 9-2) of the Convention and Article 2 para. 3 of Protocol No. 4 (P4-2-3) ; it also covers the order that must prevail within the confines of a specific social group, such as the armed forces (Eur. Court H.R., Engel and Others judgment, loc. cit., p. 41, para. 98).   70.    The Commission considers that the Austrian regulations underlying the prohibition on the distribution of periodicals in the area of military barracks aim at ensuring the military order and security, an aim stated in S. 19 of the Service Regulations.   The interference with the first applicant's right under Article 10 para. 1 (Art. 10-1) thus had the aim of prevention of disorder, which is in itself legitimate under Article 10 para. 2 (Art. 10-2) of the Convention.   cc.    Could the interference be regarded as "necessary in a democratic       society"?   71.    It remains to be determined whether the interference complained of could be regarded as necessary in a democratic society